Compensating For Wetland Losses Under The Clean Water Act PDF Download

Pursuant to Section 404 of the Clean Water Act (CWA), activities resulting in the discharge of dredge or fill material into waters of the US, including wetlands, require permit authorization from the US Army Corps of Engineers (ACOE). As part of the Section 404 permitting process, compensatory wetland mitigation in the form of wetland enhancement, restoration, or construction may be required to off-set impacts sustained under a Section 404 permit. Under normal circumstances, compensatory mitigation is a relatively straight forward process; however, issues associated with mitigation become more complex at sites undergoing remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), because on-site response/remedial actions involving dredged and fill material are not subject to the formal Section 404 permitting process. These actions are conducted in accordance with the substantive permitting requirements of the ACOE's Nationwide and individual permitting programs. Wetland mitigatory requirements are determined through application of the US Environmental Protection Agency's (USEPA's) 040(b) (1) Guidelines promulgated in 40 CFR Part 230 and are implemented through compliance with substantive permitting requirements during the conduct of response/remedial actions. A programmatic approach for implementing wetland mitigatory requirements is being developed at a former US Department of Energy (DOE) uranium refinery undergoing CERCLA remediation in southwestern Ohio. The approach is designed to define the regulatory mechanism that will be used to integrate CWA driven wetland mitigatory requirements into the CERCLA process.